CLARK WADDOUPS, District Judge.
Currently pending before the Court is the motion by Bret F. Randall, as Trustee ("
RWI Investments L.C. ("
After consideration of the Sale Motion and RWI's objections, oral arguments and supplemental briefing, relevant case law, and the record in this case, the court now
On July 16, 1980, the United States Steel Corporation conveyed the property now constituting the Trust Property to Parish Chemical Company (PCC). In 1981, PCC changed its name to Geneva Chemical Company and quitclaimed the Trust Property to Uintah Pharmaceutical Corporation (UPC). (United States' Reply at 3; see Ex. A, ECF No. 193-1.)
Based on these transactions, the Environmental Protection Agency (EPA) determined that UPC owned the Trust Property at the time the EPA was preparing a CERCLA Lien record for the Property. On February 19, 2009, the EPA sent UPC a letter entitled Notice of Potential Liability and Intent to Perfect a Superfund Lien. (Ex. C, pp. 3-15, ECF No. 193-3.) Because UPC previously had been involuntarily dissolved by the State of Utah, the EPA sent the notice not only to UPC's Registered Agent at the Property address, but also to the UPC President and the Director of the Utah Division of Corporations and Commercial Code (UDCCC), in accordance with Utah law. (Id. at 4.) Along with the names and addresses associated with UPC and UDCCC, the Notice included the precise legal description of the property on which the lien would arise, an explanation of the basis of the lien, and the address of the EPA's regional enforcement officials handling the matter. (Id. at 3-7.) The Notice included other pertinent information, such as descriptions of the relevant CERCLA provisions providing for the lien and its duration; explanation of the owner's opportunity to contest the lien record with the EPA; and notation of the certified mailing article numbers for each recipient's address. (Id.)
On March 12, 2009, the EPA filed the Notice of Federal Lien with the Utah County Recorder. (Ex. C, pp. 17-23, ECF No. 193-3.) The Notice includes UPC's name and address; the precise legal description of the property; an explanation of the basis of the lien, with citation to relevant CERCLA provisions; the names and address of the EPA's regional enforcement officials; and the Utah County Recorder's stamp with the date of the lien filing. (Id.)
On April 3, 2009, the EPA sent UPC a letter notifying it of the perfection of the CERCLA Lien by recording the Notice of Federal Lien with the Utah County Recorder on March 12, 2009. (Ex. C, pp. 25-38, ECF No. 193-3.) This letter contained similar information as in the February notice and attached the recorded Notice of Federal Lien. (See id. at 25-30.)
In February 2010, UPC conveyed the Property back to PCC by a Special Warranty Deed. (Reply at 4; see Ex. D, ECF No. 193-4.) On July 1, 2011, nearly two years after EPA recorded its CERCLA Lien, PCC and RWI executed an Option Agreement for Perpetual Easement, and then a Grant of Perpetual Easement, which was recorded on October 14, 2011. (Exs. B & C to Sale Mot., ECF No. 186.)
The United States filed this lawsuit against PCC and UPC on September 8, 2009, a few months after it filed its Notice of Federal Lien. The United States sued Parish Chemical (PCC and UPC, collectively) for releases and threatened releases of hazardous substances on the Trust Property and violations under the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. ("RCRA"), and to recover the costs incurred in responding to the release or threatened release of hazardous substances under Section 107 of CERCLA, 42 U.S.C. § 9607. (See Compl., ECF No. 2.) The court entered a preliminary injunction in 2011 and appointed a receiver in June 2012. (See ECF Nos. 59, 133, 135.) On March 26, 2013, the Court approved the Consent Decree between the EPA and the receiver, on behalf of Parish Chemical, which provided for the resolution of the CERCLA claims brought by the EPA and for the creation of the Trust for the benefit of the EPA. The court appointed Bret F. Randall, the movant here, as Trustee. (See ECF Nos. 179, 180.)
In September 2012, RWI sought to intervene in this action to assert an interest arising from agreements with the Utah Department of Transportation (UDOT) and Parish Chemical related to UDOT's Geneva Road Widening Project, which took portions of RWI and Parish Chemical's adjoining properties. (See ECF Nos. 149, 150.) The facts RWI attests to in its motion speak to its knowledge of the EPA's lien on the Parish Chemical property and RWI's negotiation of the easement in the shadow of this lien. For example, the United States noted in opposing intervention that UDOT substantially compensated RWI to address its losses from the roadwidening, to the tune of $800,000. (See ECF No. 157, p. 4 & Exs.) This sum specifically provided for the loss of parking and to allow for the razing of one building on RWI's property so that a parking lot could be built for the remaining building. (Id. at 4.) It also included sums to fund RWI's move to an alternate location. (Id.)
Instead of relocating, RWI stated in its motion that it purchased a "perpetual easement from Parish Chemical on a segment of the Parish Chemical property directly adjoining [RWI's] property." (ECF No. 150, p. 2, ¶ 4.) RWI also stated that "[a] Phase II environmental report was required in order to close the easement agreement between [RWI] and Parish Chemical and in order for UDOT to provide permanent fencing and parking on that portion of the Parish Chemical property." (Id. ¶ 6 (emphasis added).) This was because the EPA "required UDOT to obtain a Phase II environmental report to ensure the property UDOT condemned was not contaminated prior to the EPA agreeing to release its lien on title to UDOT." (Id. ¶ 7 (emphasis added).) RWI, UDOT, and Parish Chemical entered into agreements that would reimburse RWI for funding the Phase II environmental report and for permanent fencing and parking. (Id. at 3, ¶¶ 8-9.) Ultimately, RWI withdrew its motion to intervene before any decision by this court was rendered. (ECF No. 162.)
Now, after the CERCLA removal action has been completed on the Parish Chemical property (the Trust Property), the Trustee has moved the court for an order of sale of the Trust Property "free and clear" of RWI's easement interest, (ECF No. 186), and RWI has objected, (ECF No. 189). The Trustee notes that, "[a]t this time, the Trustee has a duty to obtain the greatest value possible for the Trust Property to maximize recovery of the EPA's removal costs." (ECF No. 186, p. 6.) The Trustee also notes that RWI's easement, "because it is not subject to demolition liabilities, represents a significant share of the value of the Trust Property." (Id. at 3.)
Considering RWI's objections in light of this case history, the court concludes, first, that it need not address whether CERCLA preempts state law on lien filing requirements because the EPA's Notice of Federal Lien complied with Utah law in substance and meaning. Additionally, the court finds that RWI had constructive notice of the lien at the time it secured its easement on the Trust Property. Second, the court finds that it has authority to approve the sale of the Trust Property free and clear of RWI's easement interest. Therefore, the court approves the Trustee's Sale Motion and procedures therein, as further described below.
The United States secured a federal lien under CERCLA to recover its costs in this removal action. See 42 U.S.C. § 9607(l) ("Federal lien"). CERCLA Section 107(l)(1), which describes the lien generally, provides that:
42 U.S.C. § 9607(l)(1). Section 107(l)(2) addresses when the statutory lien arises and its duration:
The lien imposed by this subsection shall arise at the later of the following:
Id. § 9607(l)(2). Finally, section 107(l)(3), entitled "Notice and validity," addresses the rights of third parties that may be affected by the federal statutory lien. Because the parties disagree on the provision's interpretation, the court quotes it in full:
Id. § 9607(l)(3). The parties do not dispute, but rather assume, that RWI's easement has been perfected under applicable Utah law; therefore, RWI contends, if the United States' lien was not perfected under Utah law, its lien is inferior to RWI's easement.
In interpreting section 107(l)(3)'s effect on the superiority of the United States' lien over state-perfected interests, the parties disagree about the meaning of the language stating "[t]he lien imposed by this subsection shall be subject to the rights of any purchaser . . . whose interest is perfected under applicable State law before notice of the lien has been filed in the appropriate office within the State (or county or other governmental subdivision), as designated by State law, in which the real property subject to the lien is located." Id. § 9607(l)(3) (emphasis added). The United States interprets this provision to mean that it must file its lien notice in the location designated by state law, but that the contents of the notice need not necessarily adhere to state law. RWI interprets this provision to mean that CERCLA lien notices must comply with state law as to both content and recording location.
Viewed in context of the full language of the provision, the court believes that the more natural reading supports the United States' position that the provision only deals with the filing of the lien notice in the location designated by state law. The court, however, recognizes the ambiguity in the statutory language. As RWI points out, both interpretations may be reasonable, particularly because CERLA does not lay out its own lien filing requirements.
But the court need not resolve the statutory ambiguity in this case, or address the underlying question of whether federal law would preempt state lien notice requirements, because the court finds the United States' Notice of Federal Lien documents comply with the purposes and substance of the Utah lien notice requirements.
The Utah notice requirements for lien filings in effect at the time of this lien filing state, in relevant part:
Utah Code Ann. § 38-12-102(1) & (2). On the whole, these statutory requirements, and other provisions in Chapter 12, appear primarily concerned with notice to the person against whom the notice of lien is filed. For example, the subsequent section, § 38-12-103, states that noncompliance with the notice requirements in section 102 may result in statutory damages accruing to "the person against whom the notice of lien was filed." Id. § 38-12-103(2). It also specifically notes that noncompliance does not invalidate the lien. Id. § 38-12-103(3). Parish Chemical, as the owner of the Trust Property against whom the lien arose, has not challenged the validity or effectiveness of the lien notice. Thus, the question arises of whether RWI truly has standing to collaterally attack the lien notice, since RWI has suffered no harm by the United States' alleged failure to strictly comply with Utah lien notice requirements and since notice was clearly effective to "the entity against whom the notice of lien was filed." Nonetheless, because RWI challenges the lien's priority over its easement and because RWI's interest is impacted by the approval of this Sale Order, the court will address RWI's challenge to the lien notice.
RWI has conceded that the Notice of Federal Lien complies with each requirement of the Utah statutory lien notice requirements except for section (2), subsections (c)-(e). (Suppl. Br. at 11 n.2, ECF No. 201.) Upon review, the court finds that the Notice of Federal Lien, on its face, satisfies at least subsections (d) and (e): per subsection (d), the Notice of Federal Lien contains the date of filing in the recorder's stamp and, per subsection (e), the Notice states the name and address of the lien claimant (i.e., the EPA, Technical Enforcement Program, Region 8) and names two regional enforcement officers.
As to subsection (c), RWI complains that the United States did not include the certified mailing article number on the Notice of Federal Lien itself, but rather in the April 2009 notice letter sent to Parish Chemical. The April 2009 notice letter features the article number conspicuously on the front and attaches a copy of the recorded Notice of Federal Lien. (ECF No. 193-3, Ex. C, p. 25.) If the letter is considered part of the Notice, all statutory requirements are satisfied. RWI presents an affidavit explaining how the certified mailing article number can easily be printed on the notice of lien before recording, but the court finds the EPA's placement of the certified mailing article number on a notice letter sent to the owner of the property against whom the lien arose within 30 days of the notice of lien filing substantially complied with the statute.
Even if the court were to ignore the full record of notice in this case and focus only on the fact that certified mailing article number was not present on the recorded Notice of Federal Lien itself, the court still finds the substantive and beneficial purposes of the lien notice statute entirely fulfilled in these circumstances.
Utah's recording statutes serve "to protect the purchaser's interest against the asserted interest of any third parties, and to inform third parties of the existence of pre-existing encumbrances on the property." Fed. Deposit Ins. Corp. v. Taylor, 2011 UT App 416, ¶ 23, 267 P.3d 949 (quoting Horman v. Clark, 744 P.2d 1014, 1016 (Utah Ct. App. 1987)). The court finds these statutory purposes were met here because RWI had at least constructive notice of the CERCLA lien and bargained for a property interest that was clouded by the lien.
"Constructive notice is `both (1) record notice which results from a record or which is imputed by the recording statutes, and (2) inquiry notice which is presumed because of the fact that a person has knowledge of certain facts which should impart to him, or lead him to, knowledge of the ultimate fact.'" Pierucci v. Pierucci, 2014 UT App 163, ¶ 18, 331 P.3d 7, 13-14 (quoting Taylor, 2011 UT App 416, ¶ 36). In this case, the court finds RWI had both record and inquiry notice of the CERLCA lien on the Trust Property.
Utah Code Ann. § 57-3-102(1) provides that documents "from the time of recording with the appropriate county recorder, impart notice to all persons of their contents." More specifically, "Utah law presumes that because documents properly filed with a county recorder are available for inspection by the general public, every person has the ability to examine these documents and thus has notice of the contents in these documents." In re Hiseman, 330 B.R. 251, 256 (Bankr. D. Utah 2005). The CERCLA lien was recorded and appears in title reports. (See ECF No. 193-5, Ex. E (title report for Trust Property)). Thus, RWI had constructive notice of the lien due to its recording in the Trust Property's chain of title.
RWI also had inquiry notice of the lien. Inquiry notice arises from the reality that
Hiseman, 330 B.R. at 256. The United States held a CERCLA lien on the Trust Property due to the costs associated with the removal action for which Parish Chemical was liable. Others dealing with Parish Chemical, including UDOT, were aware of this lien during the relevant time. Both RWI and Parish Chemical negotiated with UDOT to receive compensation for the roadwidening project. Meanwhile, UDOT negotiated with EPA regarding release of its lien on Parish Chemical's property, and RWI apparently advanced funds for an environmental study the EPA required on the Parish Chemical property before the easement agreement could close. Certainly, these interactions would have alerted a reasonable person that further investigation into the property was warranted. See Pioneer Builders Co. of Nevada v. K D A Corp., 2012 UT 74, ¶ 28, 292 P.3d 672, 680 ("[W]e have charged subsequent purchasers with constructive notice of unrecorded interests when the purchaser's observations, together with other available information, would have alerted a reasonable person that further investigation was warranted."). At the time RWI purchased the easement, the United States held, and claimed to hold, a CERCLA lien on the property. RWI's due diligence, or lack thereof, in investigating its purchase of the easement would have revealed the existence of the CERCLA lien recorded in the property's chain of title. Thus, the recorded Notice of Federal Lien fulfilled the purpose of Utah's statutory notice requirements to inform third parties of the existence of pre-existing or competing encumbrances.
RWI argues that "[i]f the certified mail number is not included on the notice of lien, it is impossible for third parties to verify whether the notice of lien was timely sent to the property owner such that it can be enforced." (ECF No. 201, p. 13.)
Despite constructive notice of the lien in the public record and from the circumstances, RWI elected to negotiate the easement running over the Trust Property. Even if, upon observation, the recorded Notice of Federal Lien failed to comply with one Utah statutory lien notice requirement—though it complied in all other respects, it clearly provided notice to the entity against whom the lien arose, and its contents clearly showed the Trust Property was encumbered—RWI cannot be said to have purchased the easement in good faith due to its constructive notice of the lien. Cf. Utah Code Ann. § 57-3-103 (providing that an unrecorded document is void against a subsequent purchaser who "purchased the property in good faith and for a valuable consideration" and whose "document is first duly recorded"). RWI's easement does not benefit from good faith or bona fide purchaser status because RWI purchased the easement on notice of the CERCLA lien and the attendant risks associated with such an encumbrance on the property. See, e.g., Carr v. Oaktree Apartments, 46 So.3d 793, 797 (La. Ct. App. 2010) ("Where a recorded instrument has language that fairly puts a third person on inquiry as to the title and he does not avail himself of the means and facilities at hand to obtain knowledge of the true facts, he is to be considered as having bought at his own peril." (quoting Voelkel v. Harrison, 572 So.2d 724, 727 (La. Ct. App. 1990))).
In these circumstances, the court finds the United States' CERCLA lien substantially and substantively complied with Utah's statutory lien notice requirements and, therefore, is superior to RWI's later-acquired easement interest. Moreover, the court finds that even if the Notice of Federal Lien failed to fulfill an element of the statute, RWI's interest would not have priority over the United States' lien because it was on notice of the recorded CERCLA lien when it purchased its easement, and thus took the easement subject to the risks inherent in such a lien.
Generally speaking, a court may order the sale of property over which it has jurisdiction "upon such terms and conditions as the court directs." 28 U.S.C. § 2001(a).
Here, RWI argues that the court's authority to order the sale "free and clear" of RWI's easement is limited to only "appropriate circumstances." (See ECF No. 200.) RWI contends that only two possible circumstances would be appropriate for the court to exercise its authority to order this sale free and clear: first, where "there is a reasonable prospect that a surplus will be left for general creditors," Seaboard, 21 F.2d at 416, and, second, in five scenarios outlined by the bankruptcy code whereupon a trustee may sell a debtor's assets "free and clear" of any property interests. See 11 U.S.C. § 363(f). These five scenarios are:
Id. § 363(f).
Of these "appropriate circumstances" (at common law and in bankruptcy), RWI contends that none are present in this case and, therefore, the court may not exercise its authority to order this sale free and clear. (ECF No. 200, pp. 7-8.) RWI makes several inconsistent arguments here. RWI first claims that there is no reasonable prospect that a surplus will be left for it to be paid the value of its easement interest after the United States' recoups its lien, which substantially exceeds the minimum sale price currently set. (See id. at 8 n.2.) But then RWI contends that its easement cannot be valued at all because easements are fundamentally different from liens or other claims for a debt or obligation, and thus RWI could not be compelled to accept monetary satisfaction of the easement in another proceeding, as 11 U.S.C. § 363(f)(5) suggests. Relatedly, RWI argues that it cannot be considered a "creditor" under the bankruptcy code because an easement is a right-of-way/right-to-use, not a debt or a claim. RWI insists that it would be "extremely difficult, if not impossible" to value the easement because "there is no underlying debt owed to an easement holder," and thus the easement would have to be valued in some other way. (See ECF No. 200, pp. 8-12.)
As an initial matter, while 11 U.S.C. § 363 ("Use, sale, or lease of property") outlines useful considerations for equity courts contemplating sales of receivership property free of interests, this sale is not undertaken pursuant to Section 363 and the bankruptcy code is not binding on this court. Therefore, the court does not analyze this case under that section.
Additionally, RWI cites no authority for the proposition that an easement—because it is a right to use or control property of a subservient estate rather than a legal claim for payment or debt from that estate—cannot be valued. The parties certainly valued the easement during their negotiation of the option agreement in 2011. A savvy bargainer might have accounted for the incremental value to RWI for not having to relocate its lessee's business, or for the diminution in the value of the property where the easement would run owing to the CERCLA lien. RWI has received the value of its easement for the past six years. Simply because RWI cannot reference some debt Parish Chemical owes it, as can be done with the CERLA lien, does not mean that RWI cannot use other measures to quantify its property interest. In the takings context, for example, easements have long been understood to be protected property rights subject to just compensation, like any other tangible or intangible property interest. See, e.g., Colman v. Utah State Land Bd., 795 P.2d 622, 625 (Utah 1990) (noting that "[i]t has always been accepted in this state that even an implied easement is a property interest protectible under article I, section 22 [the Utah takings clause]"); Dooly Block v. Salt Lake Rapid Transit Co., 33 P. 229, 231-32 (Utah 1893) (noting that a property owner holds an appurtenant easement to access the street in front of its premises for which the owner "cannot be deprived without due compensation"). See also In re Jurgielewicz Duck Farm, No. 8-10-70231-478, 2010 WL 2025503, at *7 (Bankr. E.D.N.Y. May 20, 2010) (unpublished) (collecting cases finding that a restriction or negative covenant on land was a compensable property right). The Utah Supreme Court has affirmed the principle, articulated many times by the United States Supreme Court, that "the intangible character of property alone does not preclude compensation for it." Bagford v. Ephraim City, 904 P.2d 1095, 1097-99 (Utah 1995). Significantly, RWI presents no facts upon which the court could conclude that this easement would be "extremely difficult" to value, or that the easement could not be relocated, or even that relocation costs would, in fact or estimation, be substantial. RWI merely asserts these obstacles with no factual detail to support them.
Having dispatched these arguments, the court turns to whether appropriate circumstances exist for it to order the sale of the Trust Property free and clear of RWI's interest. In these circumstances, the court finds it equitable and appropriate to order the sale free and clear of RWI's easement and to transfer RWI's easement interest to the proceeds of the sale in the same order of priority in which it currently stands.
The court's authority to order the relief requested here—sale of the Trust Property free and clear of RWI's junior easement interest—is located in the court's general equitable power to order sales of property within its jurisdiction on terms ordered by the court. See Mellen v. Moline Malleable Iron Works, 131 U.S. 352, 367 (1889) (observing that "the removal of alleged liens or incumbrances upon property, the closing up of the affairs of insolvent corporations, and the administration and distribution of trust funds are subjects over which courts of equity have general jurisdiction"). The court clearly possesses the authority to order the sale of the Trust Property "free of all encumbrances" and to order that RWI's easement interest be transferred to the proceeds of the sale. See Van Huffel v. Harkelrode, 284 U.S. 225, 227 (1931) (declaring that the power to sell property "free from incumbrances" has "long been exercised by federal courts sitting in equity when ordering sales by receivers or on foreclosure"); Seaboard Nat. Bank v. Rogers Milk Prod. Co., 21 F.2d 414, 416 (2d Cir. 1927) (observing that "[t]here is no doubt of the power of a court of equity under proper circumstances to sell property free of liens, transferring the lien to the proceeds"). See also Annotation, Power of court to authorize or direct receiver (or trustee in bankruptcy) to sell property free from liens, 120 A.L.R. 921 (1939, with supplement through 2016).
As a general rule, this equitable power should not be exercised "unless there is a reasonable prospect that a surplus will be left for general creditors." Seaboard, 21 F.2d at 416. See Stock Bldg. Supply, LLC v. Crosswinds Communities, Inc., 893 N.W.2d 165, 174 (Mich. Ct. App. 2016) (collecting state cases supporting "the proposition that a trial court should not authorize the sale of property free and clear of all liens unless the proceeds of the sale would be applied to the liens"). But as Judge Learned Hand later acknowledged, this rule is not necessarily "rigid":
Spreckels v. Spreckels Sugar Corp., 79 F.2d 332, 334 (2d Cir. 1935) (describing equity courts and bankruptcy courts' power to sell property free of liens, including tax liens). Shortly after Spreckels, a case in the Utah Supreme Court presented this very rule and, though the Court had "no occasion" to adopt it in that case, the Court noted that "[t]he rule wherever adopted has been held to be discretionary." Chapman v. Schiller, 95 Utah 514, 83 P.2d 249, 252 (1938).
Thus, courts have ordered the sale of property free of interests and encumbrances even where the effect is to extinguish junior property interests transferred to the proceeds because no proceeds remain after the satisfaction of superior interests. See Van Huffel, 284 U.S. at 227 (upholding a bankruptcy court order directing "that the property be sold free of all incumbrances; and that the rights of all lienholders be transferred to the proceeds of the sale" even though all proceeds of the sale went toward satisfaction of a prior mortgage interest, leaving a state tax lien unpaid); Pennant Mgmt., Inc. v. First Farmers Fin., LLC, No. 14-CV-7581, 2015 WL 4511337, at *5 (N.D. Ill. July 24, 2015) (unpublished) (noting that "`[w]here the asserted liens are disputed and other good cause exists,' the Court may authorize a sale of real property free and clear of liens despite asserted lien amounts that are greater than the sale price") (quoting Coulter v. Blieden, 104 F.2d 29, 32 (8th Cir. 1939)). Indeed, in Spreckels, Judge Hand affirmed a district court's decree directing the sale of property free and clear of city tax liens (which were transferred to the proceeds) even though the United States held a prior lien on the property that would have swallowed the entirety of the proceeds. 79 F.2d at 334-35. Judge Hand remarked that:
Id. at 335. In light of this case law, the court finds that it can order the sale of property free and clear, even if a junior interest holder would not receive satisfaction of its interest, where good cause and equitable circumstances exist to justify such a sale.
Though it is not clear on this record whether the proceeds from the sale will be sufficient to compensate RWI for the loss of its easement interest, the court finds the equities here weigh against RWI's position. RWI negotiated its easement on the Trust Property with notice of the CERCLA lien, which has priority, and did so despite also negotiating with UDOT for relocation expenses around the same time. RWI appears to have had other options, but chose to secure an easement interest on already-encumbered property. It cannot now claim substantial prejudice that the United States seeks to recoup on its lien at the completion of its CERCLA action.
The court also finds that RWI has received sufficient due process throughout this proceeding. RWI received notice of the Sale Motion and objection period, objected and argued its objections to the court at the motion hearing, filed supplemental briefing on its arguments, and has now obtained the court's resolution of its objections in this memorandum decision and order. RWI has received ample notice and process in this matter. Cf. Seaboard, 21 F.2d at 418 ("The court has possession of the fund, and with possession went the power to disburse it . . . provided the parties in interest were before the court. This could be accomplished by notice."); Chapman, 83 P.2d at 253 ("The same notice that makes [the bondholders] parties to the proceeding for the purpose of ordering a sale free from their liens also suffices for making them parties to the proceeding for all purposes of administration of the property, and especially for the purpose of ordering the sale.").
In conclusion, the court has heard from all parties in interest and now exercises its inherent authority and discretion to order the sale of the Trust Property free and clear of RWI's easement. The court remits RWI's easement interest to the proceeds of the sale in the order of priority in which it now stands, i.e., subject to the United States' satisfaction of its superior lien.
Upon resolution of the objections above, the court makes the following findings of fact and conclusions of law:
A. This Court has jurisdiction pursuant to Section 3008(a) of RCRA, 42 U.S.C. § 6928(a), Sections 107(a), 107(l), and 113(b) of CERCLA, 42 U.S.C. §§ 9607(a), (l), and 113(b). Furthermore, this Court retained continuing jurisdiction over matters involving the Consent Decree, pursuant to Paragraph 47, providing: "This Court shall retain jurisdiction over this matter for the purpose of interpreting and enforcing the terms of this Consent Decree." Finally, pursuant to the Trust Agreement, Section 10.03, this Court also retained continuing jurisdiction over matters involving the Trust, as follows: "This Trust shall be enforceable in the United States District Court for the State of Utah, which has continuing jurisdiction over the Consent Decree. The validity, interpretation, and performance of this Trust shall be governed by the laws of the State of Utah." Venue is proper in this district pursuant to the provisions cited in Paragraph 3 of the Complaint.
B. Pursuant to the Trust Agreement, among other responsibilities, the Trustee is required to sell or lease the Trust Property. The Court's Order approving appointment of a receiver in this case contemplates the Court's approval of such a sale:
Order Appointing Receiver, Imposing Asset Freeze and Prohibiting Destruction of Documents entered June 20, 2012 (ECF No. 135), at ¶ 40 (the "Receiver Order"). At this point in time, the Trustee is, in effect, standing in the shoes of the Receiver.
C. Good and sufficient notice of the motion and the relief sought herein has been given and no other or further notice is required. A reasonable opportunity to object and be heard regarding the relief requested in this motion has been afforded to parties in interest, namely, RWI.
D. RWI's objection to the sale has been resolved in the preceding analysis.
E. The Trust has good, valid, and marketable title to all of the Trust Property.
F. Consistent with the judgment of the Trustee, the Court finds and concludes that the most effective and orderly way of selling the Trust Property is by a bidding and public auction process approved by the Court consistent with 28 U.S.C. §§ 2001-2004, as provided herein.
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IT IS SO ORDERED.
Commencing at a point which is North 0°03'08" West along the Section line 620.54 feet and West 54.46 feet from the East quarter corner of Section 17, Township 6 South, Range 2 East, Salt Lake Base and Meridian; thence South 88°15'38" West 133.31 feet to a fence corner; thence North 89°23'38" West along a fence 99.15 feet to a fence corner; thence North 4°18'29" East along a fence 43.84 feet to a fence corner; thence North 63°02'16" West along a fence 18.38 feet to a fence corner; thence North 3°37'44" East along a fence 362.19 feet to a fence corner; thence North 85°54'53" East along a fence 18.18 feet to a fence corner; thence North 2°55'15" West along a fence 39.03 feet to a fence corner; thence North 89°51'49" East along a fence 65.96 feet to a fence corner; thence North 89°31'52" East along a fence 106.34 feet to a fence corner; thence North 88°41'52" East 30.76 feet to the West right-of-way line of Geneva Road, Highway U-114; thence South 0°25'36" East along the West line of Geneva Road 452.53 feet to the North end of a curb and the point of beginning.
Less and excepting therefrom that portion of said land conveyed to the Utah Department of Transportation, Grantee, as shown in that certain Special Warranty Deed recorded October 17, 2012, as Entry No. 90295:20012, of Official Records, more particularly described as follows towit: A parcel of land in fee, for the widening of the existing highway State Route 114 known as Project No. F-0114(21)0, being part of an entire tract of property, situate in the Southeast quarter of the Northeast quarter of Section 17, Township 6 South, Range 2 East, Salt Lake Base and Meridian, the boundaries of said parcel of land are described as follows: Beginning at the Southeast corner of said entire tract, said point being 617.08 feet North 00°02'55" West (record 620.54 feet North 0°03'08" West) along the Section line and 54.41 feet (record 54.46 feet) West from the East quarter corner of Section 17; and running thence South 89°53'00" West (record South 88°15'38" West) 31.86 feet along an existing fence and the Southerly boundary line of said entire tract to a point of intersection with a non-tangent 9,950.00-foot radius curve to the left, which point is 51.01 feet radially distant Westerly from the right of way control line of State Route 114 of said project, opposite approximate Engineers Station 612+52.87; thence northerly along the Westerly right of way line of said project the following two (2) courses and distances: (1) 160.93 feet along said curve, (chord bears North 01°48'40" East 160.93 feet) to a point 50.00 feet radially distant Westerly from the right of way control line of State Route 114, opposite approximate Engineers Station 614+14.24; (2) thence North 01°20'52" East 295.52 feet parallel with said control line to a point in the Northerly boundary line to the Northeast corner of said entire tract; thence South 00°25'36" East 456.61 feet (record 452.53 feet) along the Easterly boundary line to the point of beginning as shown on the official map of said project on file in the office of the Utah Department of Transportation.
The following described real property will be sold at public auction to the highest bidder. The street address of the property is 145 North Geneva Road, Orem, UT 84057. The property is owned by the PCC Redevelopment Trust, a trust established by order of the U.S. District Court for the District of Utah in the matter of
The Reserve Price for the property is $425,000. Only Qualified Bidders may participate in the auction. A qualified bid requires an earnest money deposit of $25,000 and the submission of a form of Purchase Agreement. If the Trustee receives more than one qualified bid, the Trustee will conduct an auction is on _________ ___, 2016 at _______ [hour], at the offices of Durham, Jones & Pinegar, 111 East Broadway, Suite 900, Salt Lake City, UT 84111. The auction will be open call format to the highest bidder. Unsuccessful bidders will be sent a refund check within five (5) days of the auction. The intention of the Purchase Agreement is to allow sufficient time for the successful bidder to achieve bona fide prospective purchaser status under CERCLA, 42 U.S.C. § 9607(r) prior to taking title to the property. To that end, the EPA has created a draft form of "reasonable steps" letter. After completing a Phase I environmental site assessment, the EPA will provide the successful bidder with a final form of "reasonable steps" letter relating to the property. Any person interested in additional information about the property, including access for inspection, may contact the Trustee, Bret Randall, via mail at the address above, telephone (801-415-3000), or email (brandall@djplaw.com).
The following described tract of land in Utah County, State of Utah:
Commencing at a point which is North 0°03'08" West along the Section line 620.54 feet and West 54.46 feet from the East quarter corner of Section 17, Township 6 South, Range 2 East, Salt Lake Base and Meridian; thence South 88°15'38" West 133.31 feet to a fence corner; thence North 89°23'38" West along a fence 99.15 feet to a fence corner; thence North 4°18'29" East along a fence 43.84 feet to a fence corner; thence North 63°02'16" West along a fence 18.38 feet to a fence corner; thence North 3°37'44" East along a fence 362.19 feet to a fence corner; thence North 85°54'53" East along a fence 18.18 feet to a fence corner; thence North 2°55'15" West along a fence 39.03 feet to a fence corner; thence North 89°51'49" East along a fence 65.96 feet to a fence corner; thence North 89°31'52" East along a fence 106.34 feet to a fence corner; thence North 88°41'52" East 30.76 feet to the West right-of-way line of Geneva Road, Highway U-114; thence South 0°25'36" East along the West line of Geneva Road 452.53 feet to the North end of a curb and the point of beginning.
Less and excepting therefrom that portion of said land conveyed to the Utah Department of Transportation, Grantee, as shown in that certain Special Warranty Deed recorded October 17, 2012, as Entry No. 90295:20012, of Official Records, more particularly described as follows towit: A parcel of land in fee, for the widening of the existing highway State Route 114 known as Project No. F-0114(21)0, being part of an entire tract of property, situate in the Southeast quarter of the Northeast quarter of Section 17, Township 6 South, Range 2 East, Salt Lake Base and Meridian, the boundaries of said parcel of land are described as follows: Beginning at the Southeast corner of said entire tract, said point being 617.08 feet North 00°02'55" West (record 620.54 feet North 0°03'08" West) along the Section line and 54.41 feet (record 54.46 feet) West from the East quarter corner of Section 17; and running thence South 89°53'00" West (record South 88°15'38" West) 31.86 feet along an existing fence and the Southerly boundary line of said entire tract to a point of intersection with a non-tangent 9,950.00-foot radius curve to the left, which point is 51.01 feet radially distant Westerly from the right of way control line of State Route 114 of said project, opposite approximate Engineers Station 612+52.87; thence northerly along the Westerly right of way line of said project the following two (2) courses and distances: (1) 160.93 feet along said curve, (chord bears North 01°48'40" East 160.93 feet) to a point 50.00 feet radially distant Westerly from the right of way control line of State Route 114, opposite approximate Engineers Station 614+14.24; (2) thence North 01°20'52" East 295.52 feet parallel with said control line to a point in the Northerly boundary line to the Northeast corner of said entire tract; thence South 00°25'36" East 456.61 feet (record 452.53 feet) along the Easterly boundary line to the point of beginning as shown on the official map of said project on file in the office of the Utah Department of Transportation.
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT ("
NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1.
(a) Buyer has deposited the sum of ________________ Dollars ($______)(the "
(b) Buyer shall pay the Purchase Price in full by not later than ________ __, 2016 (the "
(c) Upon receipt of the Purchase Price, paid in full, Seller shall execute and cause to be recorded, a Special Warranty Deed transferring the Property to Buyer.
(d) Buyer shall be responsible for any and all closing costs associated with the sale of the Property and with this Agreement, including but not limited to any title fees, recording fees, realtor fees, if any, and any other taxes or assessments relating to the Property.
(e) Buyer shall be responsible for the payment of all property taxes relating to the Property.
(f) Within 5 business days after the Closing, Buyer shall cause all public utilities, if any, to be changed into the Buyer's name.
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(a) Seller hereby represents, warrants and covenants (with the understanding that Buyer is relying on said representations, warranties and covenants) that Seller is the owner of the Property and has full power and authority to enter into and perform this Agreement in accordance with its terms.
(b) The individuals executing this Agreement on behalf of Seller are authorized to do so and, upon their executing this Agreement, this Agreement shall be binding and enforceable upon Seller in accordance with its terms.
(c) THE TRUSTEE EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE NATURE, QUALITY, VALUE OR CONDITION OF ANY PORTION OF THE PROPERTY OR ANY IMPROVEMENTS, INCLUDING, WITHOUT LIMITATION, KNOWN OR UNKNOWN ENVIRONMENTAL CONDITIONS RELATING TO THE PROPERTY.
The foregoing representations, warranties and covenants shall be true as of the date hereof and and shall survive the delivery of the Deed.
6.
The foregoing representations, warranties and covenants shall be true as of the date hereof and and shall survive the delivery of the Deed.
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IN WITNESS WHEREOF, Buyer and Seller have placed their signatures.
PCC REDEVELOPMENT TRUST
Agreement No. 2007-150, including the terms and conditions thereof: Between: Utah County, a body corporate and politic of the State of Utah And: Uintah Pharmaceutical Corporation Recorded: March 22, 2007 Entry No.: 42058:2007
NOTICE OF FEDERAL LIEN EXECUTED BY UNITED STATES OF AMERICA: U.S.A. vs: Uintah Pharmaceutical Corporation Civil No.: 2:09cv00804 Recorded: March 12, 2009 Entry No.: 26288:2009
Grant of Perpetual Easement and rights, and the terms and conditions thereof: Grantor: Parish Chemical Co., a Utah corporation Grantee: R.W. Investments, L.C., a Utah limited liability company Purpose: For the purposes of ingress and egress, parking and storage, as well as the construction and/or maintenance of any structures, surfaces, or fences related thereto, with other recitals. Recorded: October 14, 2011 Entry No.: 73625:2011
Option for Perpetual Easement and/or Option to Purchase, including the terms and conditions thereof: Grantor: Parish Chemical Company, a Utah corporation Grantee: R.W. Investments, L.C., a Utah limited liability company Purpose: An option to either acquire a perpetual easement over or to purchase the segment of real property Recorded: October 14, 2011 Entry No.: 73626:2011
Unpaid property taxes for tax years 2013 to 2016
Easements, Rights of Way, Conditions and Agreements, including the terms and conditions thereof, as shown in that certain Utah Department of Transportation Right of Entry and Occupancy Agreement: Between: Parish Chemical Company, a Utah corporation And: State of Utah, Department of Transportation Recorded: February 25, 2011 Entry No.: 16347:2011 Providing: Permission to enter upon, take possession of, and commence construction of its public works facility
Easement, and the terms and conditions thereof: Grantor: Gil Miller not individually but solely as the court-appointed Receiver of the assets of Parish Chemical Company, a Utah corporation, pursuant to the Order Appointing Receiver, Imposing Asset Freeze and Prohibiting Destruction of Documents dated June 20, 2012 in United States v. Parish Chemical Co., Case No.: 2:09cv00804-CW, in the United States District Court for the District of Utah Grantee: Utah Department of Transportation Purpose: For the purpose of constructing and maintaining thereon cut and or fill slopes and appurtenant parts thereof, to facilitate the construction of State Route 114 known as project F-0114(21)0. Recorded: October 17, 2012 Entry No.: 90296:2012
Easement, and the terms and conditions thereof: Grantor: Gil Miller not individually but solely as the court-appointed Receiver of the assets of Parish Chemical Company, a Utah corporation, pursuant to the Order Appointing Receiver, Imposing Asset Freeze and Prohibiting Destruction of Documents dated June 20, 2012 in United States v. Parish Chemical Co., Case No.: 2:09cv00804-CW, in the United States District Court for the District of Utah Grantee: Utah Department of Transportation Purpose: For the purpose of constructing driveways and appurtenant parts thereof, to facilitate the reconstruction and widening of the existing State Route 114 known as project F-0114(21)0. Recorded: October 17, 2012 Entry No.: 90297:2012
